The Subscription And Shareholders Agreement is a crucial document used when a company is issuing new shares to investors while simultaneously establishing the framework for the ongoing relationship between all shareholders. Under German law, this agreement must comply with specific formalities and requirements of the German Civil Code (BGB) and either the Limited Liability Companies Act (GmbHG) or Stock Corporation Act (AktG), depending on the company form. The document serves multiple purposes: it details the terms of the share subscription, including price and number of shares; establishes corporate governance mechanisms; sets out shareholders' rights and obligations; and includes provisions for future share transfers. It's particularly important in investment rounds, joint ventures, or company restructurings, and requires notarization for certain provisions to be enforceable under German law.
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1. Parties: Identification of all contracting parties including the company, existing shareholders, and new subscribers
2. Background: Context of the transaction, current company status, and purpose of the agreement
3. Definitions and Interpretation: Definitions of key terms and interpretation rules for the agreement
4. Subscription of Shares: Details of share subscription including number, class, price, and payment terms
5. Completion: Conditions precedent, completion mechanics, and timing of the subscription
6. Warranties and Representations: Standard warranties from the company, existing shareholders, and new subscribers
7. Management and Corporate Governance: Board composition, appointment rights, and decision-making processes
8. Shareholder Rights and Obligations: Voting rights, information rights, and general obligations of shareholders
9. Transfer Restrictions: Limitations on share transfers and required procedures
10. Pre-emption Rights: Right of first refusal on new share issues and share transfers
11. Tag-Along and Drag-Along Rights: Co-sale rights and mandatory sale provisions
12. Confidentiality: Obligations regarding confidential information
13. Term and Termination: Duration of the agreement and termination provisions
14. General Provisions: Standard boilerplate clauses including notices, amendments, and governing law
1. Anti-Dilution Protection: Protection for investors against future down rounds, included when requested by investors
2. Liquidation Preference: Special rights on liquidation or exit, typically included for preferred shareholders
3. Dividend Rights: Specific dividend policies and preferences, if not following standard statutory provisions
4. Strategic Decisions: List of matters requiring special majority or unanimous consent, if beyond statutory requirements
5. Non-Compete and Non-Solicitation: Restrictions on competitive activities, included when shareholders are active in the business
6. Intellectual Property Rights: Special provisions for IP ownership and licensing, relevant for technology companies
7. Employee Share Option Pool: Provisions for employee share schemes, if planned
8. Dead-Lock Resolution: Specific procedures for resolving shareholder disputes, recommended for 50/50 joint ventures
1. Share Capital Structure: Detailed breakdown of share capital, shareholders, and shareholding percentages
2. Subscription Details: Detailed terms of the share subscription including payment mechanics
3. Company Information: Key company details including registration information and directors
4. Reserved Matters: List of decisions requiring special approval
5. Business Plan: Initial business plan or investment objectives
6. Warranties: Detailed warranties given by the company and/or selling shareholders
7. Form of Deed of Adherence: Template for future shareholders to join the agreement
8. Articles of Association: Current or amended articles of association
9. Share Transfer Regulations: Detailed procedures for share transfers and valuations
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